My 16 year old is Father of a Child of a 16 year old Mother. What rights do the Mother's Parents have to keep the child from the Father?

Full Question:

My 16 Year old son and his 16 year old girl friend has a daughter that is a little over a month old. While at hospital after birth of baby he filled out paper work/birth certificate and I was latter told he was not on the birth certificate because the hospital was requiring a DNA test to make sure he was the father and he has no doubts. Latter after baby is home the Mother of the minor girl (birth mom to grand daughter) says she has guardian ship over the baby and will not allow the minor mother to have any say so in the baby life, not allowing her to go to other grand mother house or any where with the birth mom. Any attempts she goes to take her baby any where her mom will threaten her with calling the law, saying she has guardian ship with the birth mom is in the juvenile court system and that the juvenile court put her in guardian ship over baby and claims she has all say so over baby. is that even heard of and if she would have guardian ship or even temporary custody wouldn't there be some kind of hearing or at least documentation before the baby came home which the minor girl does still live with her mom and my son lives her at home,
11/23/2016   |   Category: Paternity ยป Minor as Par...   |   State: West Virginia   |   #27048

Answer:

You have a complicated issue and need to get a lawyer involved to assist. There may be laws that clarify what happens in West Virginia when a child is born to minor parents in regard to the parents of the minors but we do not find exactly what you may need.

Generally, the parents of a minor child who has a child do not lose their control over the minor child. A child born to a minor generally gives the mother the same rights regarding the child she gave birth to as an adult would have in some states. But since the minor is still under the care of her parents just what this may mean is not clear.

Parental rights such as custody of the minor, obligation of support and so forth remain the same as if the minor child were not pregnant or had a child.

The minor Father of the child has no rights until Paternity is established, or an Affidavit of Paternity is executed in accordance with law.

If the minor Mother becomes emancipated, then the parental rights of the minors parents cease. Emancipation can happen in West Virginia by several methods including files a Petition to Become Emancipated. Even the parents can file to have a child emancipated.

The Minor Father should have the right to file an Action to Establish Paternity, even is filed by you on his behalf as Next Friend.  See below.  You could also have the minority of the minor son removed by emancipation so he has the same rights and obligations as an adult. But again, you need to ask a local attorney best course of action.

If the Parents of the minor Mother filed for Guardianship in Juvenile Court, it may be that they were not required to give notice since no paternity has been established.  However, it is not clear why they would have filed this in Juvenile Court.  If they did you may have to file something in that proceeding as well.  Ask your lawyer/

You need to get a lawyer involved to protect your Son's Parental rights. Only a local attorney can assist you take the right action.  

The Parents of the minor Mother are clearly attempting to take actions adverse to the minor Father.

The minor Fathers name would not be on the birth certificate unless the affidavit of paternity or paternity determination was made and since not, no Father was listed.  
 

§16-5-10. Birth registration acknowledgment and rescission of paternity.

(a) A certificate of birth for each live birth which occurs in this state shall be filed with the section of vital statistics, or as otherwise directed by the State Registrar, within seven days after the birth and shall be registered if it has been completed and filed in accordance with this section.

(b) When a birth occurs in transit to or in an institution, the person in charge of the institution or his or her authorized designee shall obtain all data required by the certificate, prepare the certificate, certify either by signature or by an approved electronic process that the child was born alive at the place and time and on the date stated, and file the certificate as directed in subsection (a) of this section. The physician or other person in attendance, or any person providing prenatal care shall provide the medical information required by the certificate within seventy-two hours after the birth.

(c) When a birth occurs other than in transit to or in an institution, the certificate shall be prepared and filed by one of the following persons in the indicated order of priority in accordance with legislative rule:

(1) The physician in attendance at or immediately after the birth;

(2) Any other person in attendance at or immediately after the birth;

(3) The father or the mother, or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred; or

(4) Any other person qualified by the department by rule to establish the facts of birth.


(d) When a birth occurs on a moving conveyance within the United States and the child is first removed from the conveyance in this state, the birth shall be registered in this state, and the place where it is first removed shall be considered the place of birth. When a birth occurs on a moving conveyance while in international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in this state, the birth shall be registered in this state, but the certificate shall show the actual place of birth insofar as can be determined.

(e) For the purposes of birth registration, the woman who gives birth to the child is presumed to be the mother, unless otherwise specifically provided by state law or determined by a court of competent jurisdiction prior to the filing of the certificate of birth.

(f) If the mother was married at the time of either conception or birth, or between conception and birth, the name of the most recent husband shall be entered on the certificate as the father of the child, unless:

(1) Paternity has been determined otherwise by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other applicable law, in which case the name of the father as determined by the court shall be entered on the certificate; or

(2) Genetic testing shows that the alleged father is the biological father of the child pursuant to the following guidelines:

(A) The tests show that the inherited characteristics including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any other state, and an expert qualified as an examiner of genetic markers has analyzed, interpreted and reported on the results; and

(B) The blood or tissue or other genetic test results show a statistical probability of paternity of more than ninety-eight percent; or

 

(3) The mother, her husband, and an alleged father acknowledge that the husband is not the biological father and that the alleged father is the true biological father: Provided, That the conditions set forth in paragraphs (A) through (D) are met:

(A) The mother executes an affidavit of nonpaternity attesting that her husband is not the biological father of the child and that another man is the biological father; and

(B) The man named as the alleged biological father executes an affidavit of paternity attesting that he is the biological father; and

(C) The husband executes an affidavit of nonpaternity attesting that he is not the biological father; and

(D) Affidavits executed pursuant to the provisions of this subdivision may be joint or individual or a combination thereof, and each signature shall be individually notarized. If one of the parties is an unemancipated minor, his or her parent or legal guardian must also sign the respective affidavit.


(4) If the affidavits are executed as specified in subdivision (3) of this section, or genetic tests as specified in subdivision (2) of this section verify that the alleged father is the biological father, the alleged father shall be shown as the father on the certificate of live birth. Paternity established pursuant to subdivision (2) or (3) of this section establishes the father for all legal purposes including, but not limited to, the establishment and enforcement of child support orders, and may be rescinded only by court order upon a showing of fraud, duress or material mistake of fact.

(5) Paternity may be established pursuant to subdivision (2) or (3) of this section only when the husband's name does not appear as the father of a child on a registered and filed certificate of live birth and the affidavits or genetic tests are completed and submitted to the section of vital statistics within one year of the date of birth of the child.


(g) If the mother was not married at the time of either conception or birth, or between conception and birth, the name of the father shall not be entered on the certificate of birth without an affidavit of paternity signed by the mother and the person to be named as the father. The affidavit may be joint or individual and each signature shall be individually notarized.

(h) A notarized affidavit of paternity, signed by the mother and the man to be named as the father, acknowledging that the man is the father of the child, legally establishes the man as the father of the child for all purposes, and child support may be established pursuant to the provisions of chapter forty-eight of this code.

(1) The notarized affidavit of paternity shall include filing instructions, the parties' social security number and addresses and a statement that parties were given notice of the alternatives to, the legal consequences of, and the rights and obligations of acknowledging paternity, including, but not limited to, the duty to support a child. If either of the parents is a minor, the statement shall include an explanation of any rights that may be afforded due to the minority status.

(2) The failure or refusal to include all information required by subdivision (1) of this subsection shall not affect the validity of the affidavit of paternity, in the absence of a finding by a court of competent jurisdiction that it was obtained by fraud, duress or material mistake of fact, as provided in subdivision (4) of this subsection.

(3) The original notarized affidavit of paternity shall be filed with the State Registrar. If a certificate of birth for the child has been previously issued which is incorrect or incomplete, a new certificate of birth will be created and placed on file. The new certificate of birth will not be marked "Amended".

(4) Upon receipt of any notarized affidavit of paternity executed pursuant to this section, the State Registrar shall forward a copy to the Bureau for Child Support Enforcement.

(5) An acknowledgment executed under the provisions of this subsection may be rescinded as follows:

(A) The parent wishing to rescind the acknowledgment shall file with the clerk of the circuit court of the county in which the child resides a verified complaint stating the name of the child, the name of the other parent, the date of the birth of the child, the date of the signing of the affidavit of paternity, and a statement that he or she wishes to rescind the acknowledgment of the paternity. If the complaint is filed more than sixty days from the date of execution of the affidavit of paternity or the date of an administrative or judicial proceeding relating to the child in which the signatory of the affidavit of paternity is a party, the complaint shall include specific allegations concerning the elements of fraud, duress or material mistake of fact.

(B) The complaint shall be served upon the other parent as provided in Rule 4 of the West Virginia Rules of Civil Procedure.

(C) The family court judge shall hold a hearing within sixty days of the service of process upon the other parent.

(D) If the complaint was filed within sixty days of the date the affidavit of paternity was executed, the court shall order the acknowledgment to be rescinded without any requirement of a showing of fraud, duress, or material mistake of fact.

(E) If the complaint was filed more than sixty days from the date of execution of the affidavit of paternity or the date of an administrative or judicial proceeding relating to the child in which the signatory of the affidavit of paternity is a party, the court may set aside the acknowledgment only upon a finding, by clear and convincing evidence, that the affidavit of paternity was executed under circumstances of fraud, duress or material mistake of fact.

(F) The circuit clerk shall forward a copy of any order entered pursuant to this proceeding to the State Registrar by certified mail. The order shall state all changes to be made, if any, to the certificate of birth. The certificate of birth may not be marked "Amended."


(i) In any case in which paternity of a child is determined by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other applicable law, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.

(j) If the father is not named on the certificate of birth, no other information about the father may be entered on the certificate.

(k) In order to permit the filing of the certificate of birth within the seven days prescribed in subsection (a) of this section, one of the parents of the child must verify the accuracy of the personal data to be entered on the certificate. Certificates of birth filed after seven days, but within one year from the date of birth, will be registered on the standard form of the certificate of birth and will not be marked "Delayed." The State Registrar may require additional evidence in support of the facts of birth for certificates filed after seven days from the date of birth.

(l) In addition to the personal data furnished for the certificate of birth issued for a live birth in accordance with the provisions of this section, a person whose name is to appear on the certificate of birth as a parent shall contemporaneously furnish to the person preparing and filing the certificate of birth the social security number or numbers issued to the parent. A record of the social security number or numbers shall be filed with the local registrar of the district in which the birth occurs within seven days after the birth, and the local registrar shall transmit the number or numbers to the State Registrar in the same manner as other personal data is transmitted to the State Registrar.

(m) The local registrar shall transmit by mail or an approved electronic process each month to the county clerk of each county the copies of the certificates of all births occurring in the county or the data extracted therefrom, from which copies the clerk shall compile records of the births and shall create an index to the birth records that shall be a matter of public record. The State Registrar shall prescribe the form of the index of births.

 

CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 24. ESTABLISHMENT OF PATERNITY.

§48-24-101. Paternity proceedings.
(a) A civil action to establish the paternity of a child and to obtain an order of support for the child may be instituted, by verified complaint, in the family court of the county where the child resides: Provided, That if such venue creates a hardship for the parties, or either of them, or if judicial economy requires, the court may transfer the action to the county where either of the parties resides.

(b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a family court upon the petition of the state or another proper party may intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established, of the mother of the child and of the putative father of the child. The parties to a paternity proceeding are not entitled to a trial by jury.

(c) The sufficiency of the statement of the material allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a particular case shall rest in the sound discretion of the court, to be exercised by the court according to the circumstances and exigencies of the case, having due regard for precedent and the provisions of the statutory law of this state.

(d) A decree or order made and entered by a court in a paternity proceeding shall include a determination of the filial relationship, if any, which exists between a child and his or her putative father and, if such relationship is established, shall resolve dependent claims arising from family rights and obligations attendant to such filial relationship.

(e) A paternity proceeding may be brought by any of the following persons:

(1) An unmarried woman with physical or legal custody of a child to whom she gave birth;

(2) A married woman with physical or legal custody of a child to whom she gave birth, if the complaint alleges that:
 
(A) The married woman lived separate and apart from her husband preceding the birth of the child;

(B) The married woman did not cohabit with her husband at any time during such separation and that such separation has continued without interruption; and

(C) The respondent, rather than her husband, is the father of the child;

(3) The state of West Virginia, including the bureau for child support enforcement;

(4) Any person who is not the mother of the child but who has physical or legal custody of the child;

(5) The guardian or committee of the child;

(6) The next friend of the child when the child is a minor;

(7) By the child in his or her own right at any time after the child's eighteenth birthday but prior to the child's twenty-first birthday; or

(8) A man who believes he is the father of a child born out of wedlock when there has been no prior judicial determination of paternity.


(f) If a paternity proceeding is brought that names the father of the child as being someone other than the person whose name appears on the child's birth certificate, then the person bringing the action shall cause a copy of the verified complaint to be served on the person named as the father on the birth certificate. Service must be in accordance with rule 4 of the rules of civil procedure.

(g) Blood or tissue samples taken pursuant to the provisions of this article may be ordered to be taken in such locations as may be convenient for the parties so long as the integrity of the chain of custody of the samples can be preserved.

(h) A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for a proceeding brought under this article with respect to a child who may have been conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.

(i) When the person against whom the proceeding is brought has failed to plead or otherwise defend the action after proper service has been obtained, judgment by default shall be issued by the court as provided by the rules of civil procedure.

§48-24-102. Statute of limitations; prior statute of limitations not a bar to action under this article; effect of prior adjudication between husband and wife.

(a) Except for a proceeding brought by a child in his or her own right under the provisions of subdivision 24-101(e)(7), a proceeding for the establishment of the paternity of a child shall be brought prior to such child's eighteenth birthday.

(b) A proceeding to establish paternity under the provisions of this article may be brought by or on behalf of a child notwithstanding the fact that, prior to the first day of July, one thousand nine hundred eighty-six, an action to establish paternity may have been barred by a prior statute of limitations set forth in this code or otherwise provided for by law.

(c) A proceeding to establish paternity under the provisions of this article may be brought for any child who was not yet eighteen years of age on the sixteenth day of August, one thousand nine hundred eighty-four, regardless of the current age.

(d) A proceeding to establish paternity under the provisions of this article may be brought for any child who was not yet eighteen years of age on the sixteenth day of August, one thousand nine hundred eighty-four, and for whom a paternity action was brought but dismissed because a statute of limitations of less than eighteen years was then in effect.

(e) Any other provision of law to the contrary notwithstanding, when a husband and wife or former husband and wife, in an action for divorce or an action to obtain a support order, have litigated the issue of the paternity of a child conceived during their marriage to the end that the husband has been adjudged not to be the father of such child, such prior adjudication of the issue of paternity between the husband and the wife shall not preclude the mother of such child from bringing a proceeding against another person to establish paternity under the provisions of this article.

§48-24-103. Medical testing procedures to aid in the determination of paternity.
(a) Prior to the commencement of an action for the establishment of paternity, the bureau for child support enforcement may order the mother, her child and the man to submit to genetic tests to aid in proving or disproving paternity. The bureau may order the tests upon the request, supported by a sworn statement, of any person entitled to petition the court for a determination of paternity as provided in section one of this article. If the request is made by a party alleging paternity, the statement shall set forth facts establishing a reasonable possibility or requisite sexual contact between the parties. If the request is made by a party denying paternity, the statement may set forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties or other facts supporting a denial of paternity. If genetic testing is not performed pursuant to an order of the bureau for child support enforcement, the court may, on its own motion or shall upon the motion of any party, order such tests. A request or motion may be made upon ten days' written notice to the mother and alleged father without the necessity of filing a complaint. When the tests are ordered, the court or the bureau shall direct that the inherited characteristics, including, but not limited to, blood types, be determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state or any other state and an expert qualified as an examiner of genetic markers shall analyze, interpret and report on the results to the court or to the bureau for child support enforcement. The results shall be considered as follows:

(1) Blood or tissue test results which exclude the man as the father of the child are admissible and shall be clear and convincing evidence of nonpaternity and, if a complaint has been filed, the court shall, upon considering such evidence, dismiss the action.

(2) Blood or tissue test results which show a statistical probability of paternity of less than ninety-eight percent are admissible and shall be weighed along with other evidence of the respondent's paternity.

(3) Undisputed blood or tissue test results which show a statistical probability of paternity of more than ninety-eight percent shall, when filed, legally establish the man as the father of the child for all purposes and child support may be established pursuant to the provisions of this chapter.

(4) When a party desires to challenge the results of the blood or tissue tests or the expert's analysis of inherited characteristics, he or she shall file a written protest with the family court or with the bureau for child support enforcement, if appropriate, within thirty days of the filing of such test results and serve a copy of such protest upon the other party. The written protest shall be filed at least thirty days prior to any hearing involving the test results. The court or the bureau for child support enforcement, upon reasonable request of a party, shall order that additional tests be made by the same laboratory or another laboratory within thirty days of the entry of the order, at the expense of the party requesting additional testing. Costs shall be paid in advance of the testing. When the results of the blood or tissue tests or the expert's analysis which show a statistical probability of paternity of more than ninety-eight percent are confirmed by the additional testing, then the results are admissible evidence which is clear and convincing evidence of paternity. The admission of the evidence creates a presumption that the man tested is the father.

(b) Documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish the chain of custody. A verified expert's report shall be admitted at trial unless a challenge to the testing procedures or a challenge to the results of test analysis has been made before trial. The costs and expenses of making the tests shall be paid by the parties in proportions and at times determined by the court.

(c) Except as provided in subsection (d) of this section, when a blood or tissue test is ordered pursuant to this section, the moving party shall initially bear all costs associated with the blood or tissue test unless that party is determined by the court to be financially unable to pay those costs. This determination shall be made following the filing of an affidavit pursuant to section one, article two, chapter fifty-nine of this code. When the court finds that the moving party is unable to bear that cost, the cost shall be borne by the state of West Virginia. Following the finding that a person is the father based on the results of a blood or tissue test ordered pursuant to this section, the court shall order that the father be ordered to reimburse the moving party for the costs of the blood or tissue tests unless the court determines, based upon the factors set forth in this section, that the father is financially unable to pay those costs.

(d) When a blood or tissue test is ordered by the bureau for child support enforcement, the bureau shall initially bear all costs subject to recoupment from the alleged father if paternity is established.

§48-24-104. Establishment of paternity and duty of support.
(a) When the respondent, by verified responsive pleading, admits that the man is the father of the child and owes a duty of support, or if after a hearing on the merits, the court shall find, by clear and convincing evidence that the man is the father of the child, the court shall, subject to the provisions of subsection (c) of this section, order support in accordance with the support guidelines set forth in article 13-101, et seq., and the payment of incurred expenses as provided in subsection (e) of this section.

(b) Upon motion by a party, the court shall issue a temporary order for child support pending a judicial determination of parentage if there is clear and convincing evidence of paternity on the basis of genetic tests or other scientifically recognized evidence.

(c) Reimbursement support ordered pursuant to this section shall be limited to a period not to exceed thirty-six months prior to the service of notice of the commencement of paternity or support establishment, unless the court finds, by clear and convincing evidence:

(1) That the respondent had actual knowledge that he was believed to be the father of the child;

(2) That the respondent deliberately concealed his whereabouts or deliberately evaded attempts to serve process upon himself or herself; or

(3) That the respondent deliberately misrepresented relevant information which would have enabled the petitioner to proceed with the cause of action.

If the court finds by clear and convincing evidence that the circumstances in subsection (1), (2) or (3) exist, then the court shall order reimbursement support to the date of birth of the child, subject to the equitable defense of laches.

(d) The court shall give full faith and credit to a determination of paternity made by any other state, based on the laws of that state, whether established through voluntary acknowledgment or through administrative or judicial process.

(e) Bills for pregnancy, childbirth and genetic testing are admissible and constitute prima facie evidence of medical expenses incurred.

(f) The thirty-six month limitation on reimbursement support does not apply to the award of medical expenses incurred.

(g) For purposes of this section, "reimbursement support" means the amount of money awarded as child support for a period of time prior to the entry of the order which establishes the support obligation.

§48-24-105. Representation of parties.
Notwithstanding any provision of this code to the contrary, no parent in any proceeding brought pursuant to this article may have counsel appointed for them according to section one, article twenty-one, chapter twenty-nine of this code or otherwise receive legal services provided solely by the state in such action. The bureau for child support enforcement providing representation to the state of West Virginia shall solely represent the state of West Virginia and does not provide any representation to any party.

§48-24-106. Establishing paternity by acknowledgment of natural father.
     A written, notarized acknowledgment executed pursuant to the provisions of section ten, article five, chapter sixteen of this code legally establishes the man as the father of the child for all purposes and child support may be established in accordance with the support guidelines set forth in article 13-101, et seq.